IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RENEE NOLL BAUMGARDNER, et al. : CIVIL ACTION

 :

v. :

 :

WYETH PHARMACEUTICALS : No. 05-05720-JF

MEMORANDUM AND ORDER

Fullam, Sr. J. May 11, 2006

This case presents several procedural anomalies and

incongruities. There are 10 sets of plaintiffs, none of whom

reside in Pennsylvania. The only thing they have in common

(other than being represented by the same law firm) is that they

or the decedents whom they represent allegedly suffered severe

adverse consequences from ingestion of a prescription drug

“Effexor” or “Effexor XR” manufactured by the defendant, Wyeth

Pharmaceuticals, which is located in this district. The claims

of all of the plaintiffs are set forth in a single complaint,

which contains 66 paragraphs, set forth on 26 pages. In utter

disregard of the requirements of Fed. R. Civ. P. 8(a)(2) (“a

short and plain statement of the claim”), this complaint is

principally devoted to a recitation of evidence seemingly derived

from expert opinions and/or technical publications, and would

pass muster as an appellate brief. 

On a more mundane level, the only named defendant,

Wyeth Pharmaceuticals, is not a suable entity; rather, as the

complaint alleges, it is alleged to be “an unincorporated

Case 2:05-cv-05720-HB Document 24 Filed 05/11/06 Page 1 of 4
2

division of the corporation known simply as ‘Wyeth.’” (See

Complaint at ¶ 13).

Counsel for the defendant has filed a motion to dismiss

the complaint under Fed. R. Civ. P. 12(b)(6). Alternatively, the

defendant contends that the claims of the 10 sets of plaintiffs

should be severed, and transferred to the various districts where

the plaintiffs reside. Defense counsel has not addressed the

non-compliance with Rule 8 or the non-suability of the named

defendant, but contends merely that the complaint embodies 10

separate claims which are improperly joined, and therefore should

either be dismissed, or severed and tried separately elsewhere.

At oral argument on the pending motion, plaintiffs’

counsel virtually conceded that the 10 cases could not be tried

to conclusion in this district: each case would, to a

considerable extent, involve distinct facts, and the application

of the different laws of the various states. Rather, plaintiffs’

counsel insists (1) that the cases should remain in this district

for consolidated pretrial discovery; and (2) that there is one

common issue (whether the defendant’s drug can cause the adverse

consequences experienced by the plaintiffs) which should be tried

here. This is an issue which would require expert testimony on

both sides, the expense of which, plaintiffs contend, should only

be incurred once. Defense counsel is willing to have the cases

Case 2:05-cv-05720-HB Document 24 Filed 05/11/06 Page 2 of 4
3

remain in this district for consolidated pretrial discovery, but

remains convinced that the cases must be tried separately.

I have reached the following tentative conclusions:

1. There really are 10 separate cases. If plaintiffs

wish to proceed in this court, each set of plaintiffs must pay

the appropriate filing fee. The cases will therefore be severed

from each other, to the extent set forth below.

2. The defendant shall hereafter be referred to as

“Wyeth, d/b/a Wyeth Pharmaceuticals.”

3. The cases shall be deemed to have been

consolidated for purposes of pretrial discovery which is either

common to all these cases or, if applicable only to individual

cases, may conveniently be conducted in this district.

4. Since eventual transfers to other districts are

likely, the claims of each set of plaintiffs should be set forth

in a separate document, and receive a separate sub-file number

(e.g., 5720(1), (2), etc.).

5. Decision as to whether any alleged common issue

can properly be tried in this district will be deferred until

completion of discovery in this district.

An Order follows.

Case 2:05-cv-05720-HB Document 24 Filed 05/11/06 Page 3 of 4
4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RENEE NOLL BAUMGARDNER, et al. : CIVIL ACTION

 :

v. :

 :

WYETH PHARMACEUTICALS : No. 05-05720-JF

ORDER

AND NOW, this 11th day of May 2006, upon

consideration of defendant’s motion to dismiss, IT IS ORDERED:

1. The defendant shall hereafter be referred to in these

actions as “Wyeth, d/b/a Wyeth Pharmaceuticals,” or “Wyeth.”

2. Each set of plaintiffs shall file an amended complaint

which (a) complies with Fed. R. Civ. P. 8, and (b) bears a separate

sub-file number. All of these complaints will be deemed

consolidated within C.A. 05-05720.

3. Each set of plaintiffs shall pay the required filing fee.

4. All of these cases are consolidated for purposes of

pretrial discovery.

5. Decision as to whether one or more issues can properly be

resolved in a single trial, whether one or more trials should take

place in this district, etc., will await further development of the

record.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

Case 2:05-cv-05720-HB Document 24 Filed 05/11/06 Page 4 of 4